ZONING TRENDS: The mixed-use puzzle

IF THERE IS ONE THING that architects, planners and developers agree on at the beginning of the 21st Century, it's that the ideal form of commercial development mixes housing, office and retail in a lively community setting.

That, they agree, provides enhanced quality of life for the residents, office workers and shoppers. Ironically, however, zoning laws created in the past century to improve quality of life by separating commercial and residential buildings now stand in the way of mixed-use developments — and perpetuate the suburban sprawl that, increasingly, is regarded as a detriment to quality of life.

“Zoning began as a kind of health measure to prevent factories being built next to houses,” notes Jonathan Cohen, who heads Jonathan Cohen & Associates, a Los Angeles-based architectural and planning firm. “Now we are in a kind of vicious cycle. Single-use zoning led to developers wanting to do things on a large scale — a whole lot of housing here, a whole lot of retail there, and pretty soon we were driving everywhere.”

Dealing with zoning regs

It may take years — or decades — to rewrite the zoning laws that favor more sprawl over concentrated, mixed-use development. But that has not stopped creative developers and planners from going ahead with projects that follow the New Urbanism model — by working around the official zoning rules.

“By and large, most established urban areas or towns are accommodating this type of development because it evolves over time as a natural pattern,” says Kevin Cantley, president and CEO of Cooper Carry Inc., an Atlanta-based full-service design firm. “But you have to go through a process of renegotiating zoning or acceptance of variances.”

Cohen says the cities with the most reasonable approach to development don't rely on zoning as a primary planning tool. “Instead of restrictive, reactive planning where developers propose a project and an up or a down vote is taken, these cities do more practice planning, with a goal of creating a community,” Cohen says.

One such community is Midtown Atlanta, which came up with a specific long-term process for developing streetscapes and mixed-use projects. Midtown even has a special zoning category for such uses within designated geographic areas.

But even this type of zoning can present “all sorts of other complications,” notes Tad Leithead, a principal in the Atlanta development firm Urban One Associates.

For example, Leithead says, developers armed with mixed-use zoning permits still might face situations where trees are not allowed close to the street or where cars can't park on the street. Setback mandates can also be a problem.

When Leithead's company was partnering in the Ridenour mixed-use development in suburban Cobb County, Ga., the project won approval under a special “village community” designation.

“But we still had to get more than 200 variances,” recalls Leithead, who serves on the board of directors for the planning agency for the 10-county Metro Atlanta area. “In traditional zoning, for example, you have 50 feet of setback. But when you're trying to build a community with inviting retail at street level you want it to be closer than that.”

John McIlwain, a senior fellow with the Urban Land Institute in Washington, D.C., agrees that accommodations currently in use can be “a two-edged sword.” In addition to the time it takes to negotiate the needed waivers and modifications, there is often a price to pay for bending the conventional zoning rules. “For example, you may have zoning provisions that insist on the inclusion of affordable housing,” he notes.

Still, there can be advantages for developers. “With, say, 10% affordable housing you may get a much wider range of market penetration, which can either accelerate sales or help position your rentals with greater flexibility,” says McIlwain.

This type of approach has also led to repositioning of shopping centers. “The highest and best use of the land may now be a mix of office and retail and residential; this is happening both at the business district level and in suburban malls,” McIlwain observes. Since the United States is heavily over-retailed, he adds, this makes sense from a marketing standpoint as well.

Greater changes down the road?

In the near term, developers don't hold out much hope for repeal of the outmoded single-use zoning laws on the books in many communities.

“I see a potential for change; zoning officials are not totally intractable,” says Leithead. “But the people who develop zoning categories have no enforcement power. We need people to run for office who understand the concept we are talking about.”

Dan Woodley, head of Atlanta-based Dan Woodley Communities Inc., is even less sanguine. “It is a huge problem, no doubt about it,” he says. Municipal officials have to get re-elected, so they talk “smart growth” but are skittish about implementing it because of the perceived negativity of high density and the “not in my backyard” syndrome.

“When you get more successful developments with people on the streets talking with each other again in person, maybe we can break that cycle,” Woodley adds.

Cantley agrees. “Hopefully, the trend in the future is for accommodation of mixed use,” he says. “It just takes showing a population that has never seen anything but single-family homes what the alternative can be.”

When the public and their elected officials come around, the American Planning Association is ready. The group, a nonprofit public interest and research organization committed to urban, suburban, regional, and rural planning, has model language for new mixed-use and flexible zoning codes.

“It shows a whole new generation of thinking at that level,” McIlwain says. “Other new model codes are beginning to float around, and the new instruction going out among planning administrators is to look for opportunities to do this.”

In the meantime, Cohen notes, projects are moving ahead despite codes that seem to rule them out. “Most projects are being done as planned developments,” Cohen says. “You just create a plan for an area, and say to the developers, ‘You can come in and build on your site and if you're in conformance with our plan you will be approved.’ This is much more sophisticated than zoning, and that's the way a lot of mixed-use development will happen.”